COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70720 DUANE WILNER : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : STATE FARM MUTUAL AUTOMOBILE : OPINION INSURANCE COMPANY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-278928. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: James J. McDonnell, Esq. 936 Terminal Tower Cleveland, OH 44113 For Defendant-Appellee: Joseph R. Wantz, Esq. 2121 Superior Building 815 Superior Avenue N.E. Cleveland, OH 44114 -2- DAVID T. MATIA, P.J.: Duane Wilner, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, in which the trial court granted the motion for partial summary judgment of State Farm Mutual Automobile Insurance Company, defendant-appellee. Plaintiff-appellant assigns one error for this court's review. Defendant-appellee has moved to dismiss the instant appeal as untimely filed. For the following reasons, plaintiff-appellant's appeal is dismissed. I. THE FACTS On September 17, 1994, Duane Wilner, plaintiff-appellant, was operating a 1989 Nissan Sentra automobile owned by plaintiff- appellant's aunt, Lillian Zipp. The vehicle was traveling southbound on Martin Luther King, Jr. Boulevard in Cleveland, Ohio when it was struck head-on by a vehicle traveling northbound driven by an unidentified and still unknown driver. As a result, plaintiff-appellant sustained extensive and permanent injuries for which he has received continued treatment. Plaintiff-appellant had been operating the 1989 Nissan Sentra with the lawful permission of its owner, Lillian Zipp. At the time of the accident, plaintiff-appellant was thirty- seven years of age and living in the same residence with his paternal aunt, Lillian Zipp. The residence was owned by Peter Wilner, plaintiff-appellant's father and brother to Lillian Zipp. Plaintiff-appellant and Ms. Zipp each made separate monthly rental -3- payments to Peter Wilner. Plaintiff-appellant maintains that although he and Lillian Zipp shared the same home, each one maintained completely separate households, neither providing financial support for the other in any way. Lillian Zipp's Nissan and plaintiff-appellant's Jeep Comanche were both insured by State Farm under separate policies of insurance. Ms. Zipp's insurance policy number was 676-0594-B12- 355 with uninsured/underinsured motor vehicle coverage limits of $100,000. per person and $300,000 per accident. Plaintiff- appellant's policy number was 662-1937-F01-35D with identical uninsured/underinsured motor vehicle coverage limits. Plaintiff- appellant's father, Peter Wilner, also had automobile insurance with State Farm with the same uninsured/underinsured motor vehicle coverage limits. Mr. Wilner's policy number was 448-2796-B26-359. All three policies were in effect on the day of the accident. It is in dispute as to whether the insureds in question received any type of premium reduction from State Farm, defendant-appellee. On October 19, 1994, plaintiff-appellant filed a complaint in the Cuyahoga County Court of Common Pleas alleging negligence against the unknown driver of the vehicle that struck plaintiff- appellant's automobile and breach of contract against State Farm Mutual Automobile Insurance Company, defendant-appellee, arising out of the insurance policies held by Lillian Zipp, plaintiff- appellant and plaintiff-appellant's father, Peter Wilner. Plaintiff-appellant sought recovery under the -4- uninsured/underinsured provisions of all three policies of insurance. On November 13, 1995, State Farm filed a motion for partial summary judgment as to plaintiff-appellant's third and fourth causes of action arising out of the policies of insurance held by plaintiff-appellant and plaintiff-appellant's father, Peter Wilner. State Farm argued in its motion for partial summary judgment that plaintiff-appellant was not entitled to uninsured motorist coverage or medical payments under either policy of insurance based upon the provisions of the specific policies as well as the Ohio Supreme Court's holding in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, which allowed insurers to contractually prohibit intrafamily stacking by family members living in the same household. Plaintiff-appellant filed a brief in opposition to defendant-appellee's motion for partial summary judgment and a supplement to the brief in opposition in which he maintained that the three named insureds did not qualify as members of the same household as contemplated in Savoie, supra, and therefore, State Farm should not be able to prohibit recovery under each separate policy. Plaintiff-appellant argued further that, since no premium reduction was offered by State Farm as a result of the various familial relationships, State Farm should be precluded from reducing any benefits available under the relevant policies. On February 13, 1996, the trial court issued the following judgment entry: -5- Defendant's motion for partial summary judgment is granted based upon the underlying public policy of prohibiting intrafamily stacking. Pretrial is set for February 22, 1996 at 9:30 a.m. on the remaining cause of action. Partial. Vol. 1930 Pg. 663. On March 13, 1996, plaintiff-appellant filed a notice of appeal from the February 13, 1996 judgment entry of the trial court. This appeal was designated as number 70358. On March 20, 1996, a stipulation for dismissal and judgment entry signed by counsel for both parties was filed with the trial court. The stipulation for dismissal and judgment entry provided in pertinent part: *** the First Cause of Action and the Second Cause of Action of Plaintiff's Complaint are hereby settled and dismissed with prejudice, except to the extent those causes of action have been incorporated into Plaintiff's Third Cause of Action and Fourth Cause of Action to state the basis for same. It is specifically agreed that Plaintiff's Third Cause of Action and Fourth Cause of Action are not settled, but same are preserved herein for purposes of appeal pursuant to the court's ruling on Defendant State Farm's Motion for Summary Judgment, which has previously been granted by the court. Costs to defendant State Farm. This court may enter an order accordingly, notice by the Clerk being hereby waived. On March 21, 1996, the trial court signed the stipulation for dismissal and judgment entry. On March 28, 1996, the trial court issued its own judgment entry which stated: Settled and Dismissed as to plaintiff's first and second causes of action, with prejudice at defendant's costs. Vol. 1945 Pg. 221. -6- On April 1, 1996, the trial court issued a second judgment entry which stated: Settled and Dismissed with prejudice at defendant's costs. Vol. 1946 Pgs. 18-19. Attached to this judgment entry was the stipulation for dismissal and judgment entry filed by the parties on March 20, 1996. Also on April 1, 1996, this court sua sponte dismissed plaintiff-appellant's first appeal number 70358 pursuant to Civ.R. 54(B). On May 6, 1996, the trial court issued an additional journal entry which provided: Journal entries in Vol. 1945, Page 221 and Vol. 1946, Page[s] 18-19 are hereby vacated as having been incorrect. The first Cause of action and the Second Cause of Action of Plaintiff's Complaint are hereby settled and dismissed with prejudice, except to the extent those causes of action have been incorporated into Plaintiff's Third Cause of Action and Fourth Case (sic) of Action to state the basis for same. It is specifically agreed that Plaintiff's Third Cause of Action and Fourth Cause of Action are not settled, but same are preserved herein for purposes of appeal pursuant to the court's ruling on Defendant State Farm's Motion for Summary Judgment, which has previously been granted by the court. Costs to Defendant State Farm. (Final) On May 30, 1996, plaintiff-appellant filed a notice of appeal from the trial court's May 6, 1996 judgment entry. On September 13, 1996, State Farm, defendant-appellee, moved to dismiss the notice of appeal as untimely filed. -7- II. ASSIGNMENT OF ERROR Duane Wilner's, plaintiff-appellant's, sole assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND RULED THAT PLAINTIFF, DUANE WILNER, WAS NOT ENTITLED TO ANY UNINSURED/UNDERINSURED COVERAGE UNDER HIS OWN POLICY OF INSURANCE. A. THE ISSUE RAISED: INTRAFAMILY STACKING AND UNINSURED/UNDERINSURED MOTOR VEHICLE COVERAGE. Plaintiff-appellant argues, through his sole assignment of error, that the trial court incorrectly granted the motion for partial summary judgment of State Farm, defendant-appellee. Specifically, plaintiff-appellant maintains that, even though he lived in the same residence with his paternal aunt, Lillian Zipp, they did not qualify as members of the same household as contemplated by the Ohio Supreme Court in Savoie, supra. In addition, plaintiff-appellant argues that since the insurance policies at issue were purchased independently and State Farm, defendant-appellee, allegedly did not offer a premium reduction based upon the familial relationship of the individual policy holders, State Farm should be precluded from restricting any potential benefits available under the policies and plaintiff- appellant should have been permitted to collect under his own uninsured/underinsured policy of insurance as well as the policy of insurance purchased by plaintiff-appellant's aunt, Lillian Zipp. -8- Prior to reaching the merits of plaintiff-appellant's appeal, this court must determine whether plaintiff-appellant's appeal was timely filed. Defendant-appellee has filed a motion to dismiss the instant appeal on the grounds that it was not timely filed thereby depriving this court of jurisdiction to review the matter. A review of the trial court docket demonstrates that defendant-appellee's motion for partial summary judgment was granted by the trial court on February 13, 1996. The record demonstrates further that all remaining claims not disposed of through the ruling on the motion for partial summary judgment of State Farm were settled and dismissed by the parties pursuant to the stipulation for dismissal and judgment entry filed with the trial court on March 20, 1996. Since such dismissals are effective automatically upon filing with the trial court, see Gardner v. Gleydura (1994), 98 Ohio App.3d 277; Hershbain v. City of Cleveland (June 4, 1992), Cuyahoga App. Nos 60631, 61121, unreported, defendant-appellee maintains that the time for appeal began to run on March 20, 1996. Given the fact that plaintiff- appellant's notice of appeal was not filed until May 30, 1996, it is defendant-appellee's position that the appeal is not timely and this court does not have jurisdiction to proceed. Plaintiff-appellant argues that his notice of appeal was, in fact, timely filed. It is plaintiff-appellant's position that this appeal was taken from the May 6, 1996 judgment entry of the trial court, the first entry that contained the word "final." In the alternative, plaintiff-appellant maintains that his first -9- notice of appeal should not have been dismissed as a final appealable order did exist on April 1, 1996 given the stipulation for dismissal and judgment entry filed by the parties on March 20, 1996. App.R. 4(A) which deals with the time for appeal, provides in pertinent part: A party shall file the notice of appeal required by App.R. 3 within 30 days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. It is well established that a nunc pro tunc order does not operate to extend the period within which an appeal may be prosecuted unless additional rights are created or an existing right denied by such nunc pro tunc entry. Perfection Stove Co. v. Scherer (1929), 120 Ohio St. 445, 449; Aetna Life & Casualty v. Daughtery (April 21, 1983), Cuyahoga App. No. 45368, unreported; Soroka v. Soroka (June 17, 1993), Cuyahoga App. No. 62739, unreported. The relevant inquiry in such a case is whether the trial court, in its second judgment entry, has disturbed or revised legal rights and obligations which by it prior judgment entry had been settled with finality. FTC v. Minneapolis & Honeywell Co. (1952), 344 U.S. 206. In the case sub judice, a careful review of the record demonstrates that the trial court's judgment entry of May 6, 1996 vacated two prior settled and dismissed entries issued by the -10- trial court and then re-stated language previously set forth in the March 20, 1996 stipulation for dismissal and judgment entry. The trial court's judgment entry of May 6, 1996 did not create additional rights nor did it operate to deprive the parties of any previously existing rights. Accordingly, under the facts of this case, this court concludes that a final judgment was in fact entered on March 20, 1996 at the time the parties filed the stipulation for dismissal and judgment entry with the trial court and that the notice of appeal filed on May 30, 1996 is not timely under App.R. 4(A). As the timely filing of an appeal is jurisdictional, this court has no authority to hear the instant appeal and cannot rule on the assignment of error presented by plaintiff-appellant. Plaintiff-appellant maintains that even if the instant notice of appeal is not timely filed, his first appeal number 70358 was timely filed and a final appealable order was in existence at the time this court sua sponte entered its dismissal order on April 1, 1996. This argument could have contained merit had it been brought in the form of either a motion to amend the notice of appeal in case number 70358 pursuant to App.R. 3(F) or an application for reconsideration of the dismissal of appeal number 70358 brought pursuant to App.R. 26(A). However, since plaintiff-appellant failed to file any such motions and this court lacks the jurisdiction to vacate its own judgment entry of dismissal and belatedly reinstate appeal number 70358, see State ex rel LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245; Nelson v. -11- Avis Rent-A-Car Systems, Inc. (Dec. 22, 1994), Cuyahoga App. No. 64810, unreported, this court is left with no alternative but to grant defendant-appellee's motion to dismiss. Assuming arguendo that this court has jurisdiction to proceed with this appeal as plaintiff-appellant contends, a review of the record fails to demonstrate that the trial court erred by granting the motion for partial summary judgment of State Farm, defendant-appellee. The evidence presented to the trial court clearly revealed that plaintiff-appellant was living in the same household with his Aunt Lillian Zipp and, pursuant to the Ohio Supreme Court's holding in Savoie, supra, State Farm was permitted to contractually preclude intrafamily stacking under such circumstances. However, since this court does not have jurisdiction to review the merits of this case, this appeal is hereby dismissed. Appeal dismissed. -12- This appeal is dismissed. It is, therefore, considered that said appellee recover of said appellant its costs herein taxed. It is ordered that a special mandate be sent to the Common Pleas directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement -13- .